Santander v. Henson Opinion: What does it mean?

The US Supreme Court has handed down a unanimous opinion in Henson v. Santander, the case debating whether a company who buys debt to collect it qualifies as a debt collector under the definition provided by the Fair Debt Collection Practices Act. (If a refresher is needed on the details in the case, you can see this blog post.) In short, the opinion has ruled that debt buyers are not actually debt collectors, and therefore not covered by the FDCPA, yet Justice Gorsuch set certain perimeters around the decision, which with some elucidation demonstrate that there is still hope for those seeking to prevent these companies from persisting in dishonest and abusive behavior towards consumers.

The opinion states that:

A company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition in dispute. By defining debt collectors to include those who regularly seek to collect debts ‘owed…another,’ the statute’s plain language seems to focus on third party collection agents regularly collecting for a debt owner – not on a debt owner seeking to collect debts for itself.

This statement sounds quite definite, but Justice Gorsuch is careful to set certain perimeters around it regarding what the opinion does not cover. As attorney April Kuenhoff points out (in her article which can be found here):

Although the Supreme Court concluded that debt buyers are not debt collectors under the FDCPA’s second definition of a debt collector that ‘regularly collects…debts owed or due…another,’ debt buyers can still fall under the FDCPA definition of debt collector if their ‘principal purpose…is the collection of any debt.

Therefore, there is still room for attorneys to bring FDCPA claims against debt buying companies alleging that debt collection is the principal purpose of the company, and amending complaints to include that and a factual basis for that claim is one way in which lawyers can still fight for the rights of consumers.

Yet, for those companies who engage in these practices but can prove that their primary purpose differs, the FDCPA’s reach falls short. As Justice Gorsuch concludes, that is where Congress should step in, as it is for the legislative bench to amend the Act to close the loophole for the debt buying industry. As the Perrin Law Firm has represented many clients who have faced abusive and deceptive practices perpetrated by these debt buying companies, this is an issue we feel strongly about – and in the hopes of rousing our Congressmen and women to also feel strongly, we encourage you to call your local representatives, and have the legislature take on the role of seeing the debt buying industry regulated for the protection of consumers.

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Long Term Elder Care I: the Basics

Here at The Perrin Law Firm, we care about our elders. Unfortunately, we have seen far too many cases where that vulnerable demographic of our society have been abused, deceived, and simply not given the care they need to continue aging with dignity and respect; therefore, the next posts will focus on preventing the types of cases we’ve seen. The first post will focus on the basics of various options for long term care, and later posts will delve into the the issues of unregulated long term care facilities, and some common pitfalls met when choosing where our elders will be cared for and respected.

The issue of long term care for a loved one, be that a parent, a grandparent, or even of spouse, is a pressing one that many of us will one day face. When faced with this kind of question, it’s normal to feel overwhelmed and baffled by the sheer number of options. There are many factors to consider in choosing between those options, which only adds to the level of difficulty. What level of care does your loved one need? How far away are you comfortable having them? Can you keep them in an environment they’re comfortable with? What financial factors are at play? In today’s blog post, we’ll be looking at the different options, identifying if those options are licensed, and some potential issues that can arise.

Here’s a summary list of alternatives (more detail can be found on the link) listed in the Centers for Medicare and Medicaid Services’ booklet “Your guide to Choosing a Nursing Home or Other Long Term Care”:

• Community services
  • Adult day care
  • Adult day healthcare
  • Meal programs
  • Senior Centers
  • Friendly visitor programs

• Home care
  • Can include family, friends, volunteer groups, and agencies

• Accessory Dwelling Units
  • Known sometimes as “in-law” apartment, bringing your aging family member into adjacent housing.

• Subsidized senior housing

• Residential care facilities
  • Board and care
  • Assisted living

• Continuing care retirement communities

Some of these alternatives involve higher levels of care than others, and some involve moving your loved one to a different living situation altogether. Now, as we will get into later, there are many issues that can arise by utilizing unregulated apartments aimed at elderly tenants – an easy way to avoid some of them is by choosing a properly licensed facility. Here in Michigan, we have a database where you can look up whether the homes you’re looking at are licensed, through the Department of Licensing and Regulatory Affairs: http://www.michigan.gov/lara/.

 

-Breana N. Smith

US Supreme Court Opinion Split Over Debt Collection Case

On May 15th, the Supreme Court of the United States handed down a split opinion on Midland Funding, LLC v. Johnson. Essentially, Midland Funding had asserted a claim during Johnson’s bankruptcy case that Johnson owed them ten year old credit card debt. In the state this was filed, the statute of limitations is only six years in this kind of case, and had obviously expired. Naturally Johnson objected to paying a debt that had gone “stale”, and then further went forward and claimed that “filing a proof of claim on an obviously time barred debt was ‘false’, deceptive,’ ‘misleading,’ unconscionable,’ and ‘unfair’…” under the guidelines of the Fair Debt Collection Practices Act. The issue that had to be decided by the court was whether filing these “stale” debt claims in bankruptcy cases falls under the guidelines of the FDCPA – if they did, they would be subject to the consequences for unfair debt collection practices.

The opinion handed down by the Justices, however, concluded that they don’t fall into that category, because this case has to do specifically with bankruptcy law. Declaring bankruptcy entails not only a set of regulations that govern that process, but when an individual does start that process a “knowledgeable trustee” is appointed to them who should, in theory know enough to catch these “stale” debts before the consumer begins to pay them.

Yet, as I said, this was not a unanimous opinion – Justices Sotomayor, Ginsburg, and Kagan dissented, with Sotomayor publishing her dissent. (You can find the dissent after the opinion in the hyperlink provided earlier). While her fellow justices had examined the context of bankruptcy in particular to determine the role of the FDCPA, Sotomayor looked at the debt buying industry as a whole, and the particular vulnerability of consumers who were in the position of needing to declare bankruptcy, writing that, “Professional debt collectors have built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts. This practice is both “unfair” and “unconscionable.” She later concludes that, “It does not take a sophisticated attorney to understand why the practice I have described in this opinion is unfair. It takes only the common sense to conclude that one should not be able to profit on the inadvertent inattention of others. It is said that the law should not be a trap for the unwary. Today’s decision sets just such a trap.”

The Perrin Law Firm has successfully represented many consumers against these debt buying companies, and the FDCPA has proven to be the greatest tool available in our legal system to protect consumers from unsavory tactics like those outlined above. Though the Justices carefully outlined that this opinion doesn’t indicate how they will respond in yet another case involving junk debt buying companies (which we have written on here), this ruling does not necessarily inspire confidence. What do you think this decision means in the future of the FDCPA?

-Written by Breana Smith

*All briefs cited were taken from SCOTUSblog.com

Debt buyers: to be or not to be debt collectors?

On April 18th, the US Supreme Court heard the arguments for a case that could, as stated in our previous blog post, radically change the playing field for consumers, and make it more difficult to regulate debt collectors such as Midland Funding, LVNV, Portfolio Recovery Associates, Cach, and many others. In short, the argument turns on the interpretation of a word, and the decision will determine whether debt buyers will be considered debt collectors (and thus be subject to federal regulation through the FDCPA). As explained last week, the FDCPA is what protects consumers from harassment, and, if the court rules that they aren’t debt collectors, the FDCPA’s regulations will no longer apply to them. Though the arguments have now been heard by the court, they’re not yet accessible to the public, so we’ll turn our focus to an article written by Columbia law professor Robert Mann, who was able to preview the arguments.

According to Professor Mann, the questions the judges were asking don’t bode well for the borrowers, and consequently the side of consumer law. The problem for the borrowers, as I see in his article, is that the judges are not seeing the interpretation argued as being straightforward, as he quotes Justice Alito as saying it’s “not the first way you’d read that. It’s not the fiftieth way you would read that. . .you’re going really uphill on that.” This sounds quite daunting – and it is – but hope is not yet lost. Though the judges didn’t necessarily agree with the interpretation of the borrowers (as opposed to the debt buyers), they didn’t seem to think that the distinction the debt buyers are attempting to make between debt collector and debt buyer made sense. Indeed, Chief Justice Roberts realized that the industry has evolved quite a bit since Congress passed the FDCPA, and Congress wasn’t addressing these particular concerns with their wording.

Professor Mann concludes from his preview that the judges must be convinced that the regulation of these debt buyers is so necessary that they overlook the statutory text for the borrowers to be successful, yet he’s not optimistic. If his pessimistic reading proves to be the case, this means a new landscape for consumer lawyers, and a metaphorical Wild West mentality may be adapted by the debt buyers.

How do you think this case will be decided? What do you see as the potential consequences for either side?

 

–Breana N Smith

 

Ronald Mann, Argument analysis: Court dubious about reading Fair Debt Collection  Practices Act to reach debt buyers, SCOTUSblog (Apr. 19, 2017, 10:25 AM), http://www.scotusblog.com/2017/04/argument-analysis-court-dubious-reading-fair-debt-collection-practices-act-reach-debt-buyers/